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The School Dilemma


In-person, virtual, or hybrid learning? Whether you are already divorced or are in the process of separating, it is unlikely that the answers to these questions made it into your separation agreement or the divorce negotiations. Of course, there may have been heated discussions of whether to send your children to private or public school, but it is highly unlikely that you anticipated that a global pandemic may take your child out of school altogether.

In March of 2020, approximately 1.1 million children were sent home from New York City public schools with uncertainty surrounding if, when, and how children would return to schools in the Fall. Parents soon found themselves as their child’s assistant teacher, kitchen tables became school desks and iPads became the new chalk board and the challenges associated with virtual learning were experienced firsthand as. Now, in November, parents are fortunate to have choices regarding their child’s modality of school, but with all choices come consequences.

The New York Times has reported that despite the initial support to open schools for in-person learning, only about 26% or 283,000 of the 1.1 million children in the New York City public school system have attended in-person learning thus far. Since approximately 500,000 students opted to begin the school year with remote learning only, this number is significant as the schools anticipated about half of the students to attend in-person and allocated resources to do so. As a result, on October 26, 2020, Mayor De Blasio announced that although New York City had hoped to provide parents with a choice to opt-in to in-person learning once a quarter, parents now have one final opportunity to do so by November 15, 2020.

So, what does this new deadline mean for you? Irrespective of whether your child is enrolled in public or private school, the pressure is back on and decisions need to be made. Whether you now have the urgency to make a decision before the final deadline or just to provide stability for your child, these decisions are challenging.

With new COVID-19 cases rising across the country and the colder months fast approaching, whether to send your child back to school full-time or rather to enroll your child in remote learning is no easy decision and parents should work together to weigh the options to decide what meets their child’s personal needs. As the court would view, this is a matter of what is in your child’s best interest taking into account the health and safety considerations as well. It serves to remember that no two children are the same. For instance, if your child has specific academic, social, or developmental needs, parents should consider whether these needs can and should be met at home and the type of home environment a child may need to flourish. Can the IEP curriculum be effectuated at home? Do you have the time and ability to work with your children to foster their growth? Does your child receive speech or occupational therapy while at school? Should you have a tutor come to your home instead? These are important questions and considerations for parents deciding how to handle their children’s education.

There are also the obvious health concerns about sending your child back into a physical classroom. Is your child immune compromised? Are the schools capable of keeping children safe? Are you or your ex-spouse, or anyone in either household immune compromised? Do you trust that your child will be cautious and follow safety protocols? Do you trust that your child or other children will wear their mask? Is there going to be a second wave and are the schools equipped to handle it?

Answering the above questions and figuring out what path is best may also depend on a parent’s work schedule and whether or not a parent is working from home.

It is important to remember that there is no crystal ball that will provide the right answer for you but rather it is a judgment call based on all the above considerations.

If you and your former spouse share legal custody or are in the process of obtaining a divorce, follow your agreement and have a conversation and try to work through any area of disagreement together or with a third party such as a parenting coordinator or a mediator. It is best to try to come to a solution together that you feel is in the best interest of your child. Not only is coming to an agreement together a great way to avoid further conflict and successfully co-parent, it provides stability and clear guidance for your child during this difficult time. If you are able to reach an agreement, it is good practice to consult with experienced attorneys and have this arrangement solidified in a legal agreement. Alternatively, if you cannot reach an agreement on these issues, an attorney can help you determine next steps.

At Berkman Bottger Newman & Schein, LLP, we understand you have tough choices ahead of you. We assist clients throughout New York City, Westchester, and Bergen County, NJ. Please call (212) 466-6015 or fill out our contact form to schedule a consultation.